طلاق قضايي در فقه و حقوق ايران

Judicial Divorce in Iranian Jurisprudence and Law

Divorce is a right legally preserved for men. There are numerous traditions in this regard, the most important of which is the Prophetic saying as follows: "al-talaq bi-yad-i man akhaza bi-saq" ("Divorce is in the right of he who took the womanʹs hand"). Article 1133 of the civil law of Iran stipulates that: "man may divorce his wife whenever he wishes". Nonetheless, in the Islamic Law and the Iranian civil law there are cases explicitly allowing the judge and the court to issue a verdict of the divorce based on the wifeʹs request. Some of these are: (a) divorce of the woman whose husband is continuously absent (art. 1029); (b) divorce of the woman whose alimony has not been paid by the husband (art. 1129); (c) the wifeʹs distress and constriction while going on her marital life (art. 1130). In view of the present situation of our society, especially in the realm of family life, the following questions arise: Can the wife request divorce from the court if the man avoids fulfilling his marital duties? Or must she tolerate such a man? Are the cases for the wifeʹs referring to the court limited to abovementioned three ones, or the judge may issue the divorce verdict according to the wifeʹs request, in spite of the husbandʹs unwillingness, whenever the manʹs avoiding his marital duties is an instance of disobedience or nushuz, i.e. the denial of conjugal rights? The present article tries to prove the judicial divorce with a look at the Quranic verses and Islamic traditions, investigating the nature of this type of divorce.